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Intellectual Property's Faith-Based Empiricism

Goold, P. ORCID: 0000-0003-1097-8291 (2022). Intellectual Property's Faith-Based Empiricism. The Green Bag: an entertaining journal of law,


In recent decades, researchers have produced numerous studies failing to find a positive correlation between IP rights and improved measures of social utility. Based on these findings, a number of scholars argue that society ought to grant fewer and narrower IP rights in the future. One scholar, Professor Mark Lemley (‘Faith-Based Intellectual Property’ (2016) 62 UCLA L Rev 1328) claims that supporting the status quo with natural rights arguments is irrational and displays a quasi-religious ‘faith’ in IP law. This essay considers the epistemological foundations of Lemley’s ‘faith-based’ critique of natural rights arguments in IP law. Assuming that natural rights arguments are based on faith, are empirical-utilitarian arguments any more rational? This essay claims that empirical-utilitarian arguments also rest on irrational faith. Lawyers who base policy decisions on empirical IP studies are, like the present author, ‘faith-based empiricists’ when it comes to IP and utility.

Publication Type: Article
Additional Information: This article has been accepted for publication in The Green Bag: an entertaining journal of law by Green Bag.
Subjects: K Law > K Law (General)
Departments: The City Law School > Academic Programmes
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